NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
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No. 14-2867
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UNITED STATES OF AMERICA
v.
BRENT KEVIN HERCULES ANTOINE,
Appellant
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Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 2-10-cr-00229-003)
District Judge: Honorable Maurice B. Cohill, Jr.
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Submitted Under Third Circuit LAR 34.1(a)
January 12, 2015
Before: AMBRO, FUENTES, and ROTH, Circuit Judges
(Opinion filed March 25, 2015)
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OPINION*
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AMBRO, Circuit Judge
Brent Antoine appeals his convictions of conspiracy to commit access device
fraud, 18 U.S.C. 371, possession of fifteen or more counterfeit or unauthorized access
*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

devices, id. 1029(a)(3), and three counts of aggravated identity theft, id. 1028A(a)(1).
He argues that the District Court erred in denying his motion to suppress an arresting
officers out-of-court identification of him and in permitting the same officer to identify
him in court. Because the identifications were sufficiently reliable to justify their
admission at trial, we affirm.
I.

Facts
In March 2010, Robert Dean, an asset protection associate at the Walmart in

Carnegie, Pennsylvania, called 911 to report that an unspecified number of people had
just attempted to buy electronics with multiple credit cards that were rejected. Dean
watched the men get into a Dodge Caravan; he took the license plate number and relayed
what he had seen to Sergeant Stephen Fury, the officer who answered the call.
Two minutes after the call, Fury came to the parking lot of the shopping center
where the Walmart was and stopped the van. Officer Douglas Burek arrived soon after.
They learned that the van was rented, and the rental agreement did not authorize any of
the occupants to drive it. Fury and Burek therefore ordered the men out of the van so that
they could tow it away for the rental company. Antoine left the van in a well-lighted area
near the exit of the shopping center, where he told Burek his name, birth date, and
address.
Fury and Burek told the occupants to retrieve their belongings from the car; one
passenger took a black duffel bag from the trunk, but a locked safe in the van remained
unclaimed. After the stop, police obtained a search warrant for the safe, which contained

gift cards from various retail stores and the 39 credit cards used to purchase them.
Further investigation revealed that the credit cards were fraudulent.
A few days after the stop, Secret Service Special Agent Michael Radens
interviewed Burek. Radens presented Burek with photographs of suspects believed to
have been in the van Fury had stopped and asked if Burek recognized anyone. After
seeing a photo of Brentt Antoine (not the defendant, whose first name only has one t),
Burek said that he was not sure if it depicted one of the people he had stopped but that it
might. For reasons the record does not disclose, Radens recorded Bureks response as a
positive identification, and Brentt Antoine was arrested. Eventually the mistake was
cleared up, and Brentt Antoine was cleared.
In January 2011, Radens showed Burek another photograph, this one of the
defendant Brent Antoine. Burek identified Antoine, and he was arrested on the strength
of Bureks identification.
Before his trial, Antoine moved to suppress Bureks out-of-court identification as
the result of an impermissibly suggestive procedure, and he moved to preclude Burek
from identifying Antoine in court. The District Court held a hearing and denied
Antoines motions. Antoine moved for reconsideration after the Governments case-inchief, and reconsideration was also denied. A jury convicted him of all counts, and he
appeals.
II.

Discussion
[W]e review a decision to admit identification testimony over an objection for

abuse of discretion. United States v. Brownlee, 454 F.3d 131, 137 (3d Cir. 2006).
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Identification testimony violates a criminal defendants due process rights when it is both
unnecessarily suggestive and creates a substantial risk of misidentification. Id.
The District Court heldand the Government does not contestthat the January
2011 identification procedure was unduly suggestive.1 We need to decide only whether
the District Court correctly ruled that the identification was sufficiently reliable to justify
its admission at trial. In determining whether a suggestive identification is reliable, we
consider: [(1)] the opportunity of the witness to view the criminal at the time of the
crime, [(2)] the witness degree of attention, [(3)] the accuracy of the witness prior
description of the criminal, [(4)] the level of certainty demonstrated by the witness at the
confrontation, and [(5)] the length of time between the crime and the confrontation.
Young v. Conway, 698 F.3d 69, 78 n.6 (2d Cir. 2012) (alterations in original) (quoting
Neil v. Biggers, 409 U.S. 188, 199-200 (1972)).
Although some facts here argue in favor of suppression, this is not one of the
extraordinary cases that identification evidence should be withheld from the jury.
United States v. Jones, 689 F.3d 12, 18 (1st Cir. 2012). That when Burek viewed
Antoine on March 3, 2010 it was after nightfall, and that Bureks correct January 2011
identification took place over a year later, both weigh in favor of suppression. However,

No doubt the identification procedure could and should have been better: no testimony
suggests that Radens showed Burek an array or a series of pictures or that Burek had
reason to doubt that Radens was trying to identify Antoine. Confirming any suspicion
that the January 2011 procedure was suggestive, a similar interaction between Radens
and Burek in March 2010 led to the arrest of the innocent Brentt Antoine. Where, as
here, there was no emergency requiring Burek to make an identification on the spot, it is
little to ask that law enforcement take some additional time and conduct a less suggestive
identification procedure. Brownlee, 454 F.3d at 138 n.4.
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the following considerations developed during Bureks direct and cross-examinations at

the suppression hearing trump those factors: (1) Burek viewed Antoines face at close
range for three to five minutes using a flashlight and floodlights in a parking lot lit by
overhead lights; (2) the observation took place in calm circumstances by a trained and
attentive law-enforcement officer; (3) Bureks written report completed soon after, while
general, was accurate in its description of Antoine; (4) Bureks confidence in his January
2011 identification was absolute; and (5) Antoines name matches that given to Burek on
the night in question. And although Radens noted that Burek had positively identified the
wrong suspect on March 24, 2010, Burek testified at the suppression hearing that he
actually told Radens that this photograph of the incorrect individual could be [Antoine],
but [he] c[ouldnt] say for certain and that [i]t may [have] be[en] a different time in his
life, but it wasnt what he looked like that night. Mot. to Suppress Hrg Tr. 84:13 Aug.
21, 2012, ECF No. 202. The District Court concluded that Bureks testimony at the
suppression hearing was credible, and we must defer to this finding. Moreover, defense
counsel vigorously cross-examined Burek at trial on the reliability of the January 2011
identification, and the District Court specifically instructed the jury on how to weigh ID
evidence. Accordingly, we affirm the District Courts decision not to suppress the outof-court identification.
Bureks in-court identification is admissible unless the very substantial
likelihood of misidentification was irreparable, despite the defendants opportunity to
cross-examine the witness about the accuracy of the identification. United States v.
Holliday, 457 F.3d 121, 125 (1st Cir. 2006) (quoting Simmons, 390 U.S. at 384). For the
5

same reasons that Bureks January 2011 identification was reliable, we cannot doubt that
his in-court testimony rested on an independent recollection of talking with Antoine for
three to five minutes in an illuminated area under calm circumstances. See United States
v. Crews, 445 U.S. 463, 473 (1980).
*

The January 2011 identification, though unduly suggestive, was reliable, and thus
the District Court properly admitted it. Nor do we believe any pretrial identification
unduly influenced Bureks in-court identification. In this context, we affirm.